Appellate court saves UK nurse from losing Sh92.1 million property to Kenyan man

Court of Appeal judge Agnes Murgor. [File, Standard]

What started as a romantic relationship and marriage promises between a UK nurse, Nicole Borrough, and Joseph Mungania quickly spiraled into a deceitful scheme driven by greed, almost robbing her of Sh92,196,858 million worth of savings and investments.

Borrough sold all her assets, including a ranch, cattle, horses, horse truck, car, and took a mortgage in the UK with hopes of relocating to Kenya to live with her newly found lover, only to be duped, almost losing everything to Mungania had the appellate court not intervened.

In 2014 Burrough, an established UK nurse, met and fell in love with Mungania, a curio artist and tour guide in Ukunda, Kwale County, while she was on tour at the Kenyan Coast.

The romantic relationship came with promises of marriage, with Burrough allegedly promising to divorce the husband and permanently retire to Kenya.

To relocate to Kenya, the nurse disposed her assets, including a ranch, cattle, horses, horse truck, car and her life savings and pensions and even took a mortgage on her house.

According to the court documents, Borrough took a mortgage facility of 54,650 pounds (Sh9,509,100) against her farm known as Dolalau Isaf, Boncath, Pembrokeshire SA737 0JS, but she later sold it for 216,904.10 pounds (Sh37,741,296).

She further sold a property described as Deanlands, Blaenwaum, Whitland SA 340HX for 312,963.20 pounds (Sh54,455,562) as confirmed by the instructing firm in the UK Lewis & Lewis Company Limited through a letter dated March 29, 2019, with all the funds intended for the purchase of property in Kenya.

Burrough entrusted Mungania with Sh21 million to purchase and develop two parcels of land in Ukunda, Kwale County, and also sent him an additional Sh2 million to buy a car and register the properties in her name.

The man secured the said two parcels and bought a Toyota Hilux Pick-up as agreed but deceitfully registered the suit properties in both their names and declined to hand over the said tittle deeds and logbook.

Borrough told Court of Appeal judges Agnes Murgor, Kibaya Laibuta and Ngenye Macharia that Mungania allegedly told her not to step foot in Kenya lest she be harmed by gangsters.

She later discovered that her new found lover had allegedly forged her signature and procured registration of the suit properties in both their names in the pretext that the Kenyan law prohibits foreigners from owning land, unless jointly owned by a Kenyan citizen.

Borrough said that Mungania further registered the motor vehicle solely in his name in violation of their understanding.

She argued that the said assets were being held in trust for her benefit, and that Mungania was bound to account for, and revert ownership to her unconditionally.

The nurse told the judges that she secured funds through a mortgage advanced in the UK as well as pension benefits and sent money to Mungania to facilitate the construction of a home at Ukunda and a perimeter wall.

She said that during one of her visits to Kenya, she found that Mungania had altered the construction plans of her retirement home and was constructing rental apartments.

Borrough told the court that later, on his own volition and without consulting her, he advertised for the sale of the assets through Bidi Badu Solutions, and also proceeded to sell the vehicle for Sh1.7 million, but failed to give her the proceeds.

She argued that Mungania’s failure to give up the proceeds from the sale of the vehicle was in breach of trust, for which she claimed special damages.

Borrough claimed that her estranged boyfriend committed fraud, deceit, misrepresentation, illegality and breach of trust.

However, Mungania said that he decided to insert Borrough’s name in the title deeds of the two suit properties since he was in love with her, and he thought that they would ultimately get married.

He narrated that he met Borrough at his curio shop through a friend identified as Cathy and their romantic relationship ended due to irreconcilable differences.

Mungania said he raised money from selling artefacts and curios in the UK through Borrough who then remitted the proceeds to him through Western Union money transfer.

He claimed that he had an equitable and beneficial interest in the suit properties and he was rightly registered as a joint proprietor, having solely financed the purchase and development of the same without any direct contribution from Borrough.

Mungania further alleged that Borrough only contributed Sh6,700,000 in tranches that could not be used significantly towards the purchase and development of the suit properties which were worth Sh21,000,000.

He claimed that he single-handedly purchased and developed the rental properties in Ukunda, Kwale County, which was valued at over Sh16,000,000.

He further said that he raised more finances through sale of his miraa farm in Meru and commissions earned in selling safaris and adventure in Wasini Island in Kwale County.

However, he claimed that the Sh2 million Toyota Hilux was a gift from her estranged lover to transport miraa from Meru and opted to sell it off after it was involved in an accident.

On May 23 2023, Justice Stephne Kibunja dismissed Borrough’s claim of ownership and awarded the suit properties to Mungania, including the monies gained from selling the motor vehicle.

Justice Kibunja dismissed fraud allegations against Mangania and argued that, despite Borrough being aware that she could not purchase the land as a foreigner, she still went ahead and did so by sending money to her estranged lover.

Justice Kibunja found that the emails between the parties indicated there was indeed a romantic relationship, thereby raising doubt that Mungania may not have contributed towards the acquisition of the suit properties.

The judge said that there was no evidence that Mungania was holding the suit properties in trust for Borrough because there was no evidence of intention to create trust between the parties, or that Mungania was to hold the assets in trust for her.

Even as the court sympathised with Borrough, it held that the suit properties were co-owned by the parties as the title documents indicated that they were tenants in common in equal shares.

Justice Kibunja equally said that Borrough could not lay claim over the motor vehicle, because she did not prove ownership and could not claim entitlement to the proceeds from its sale.

However, the appellate court came to Borrough’s rescue by dismissing Justice Kibunja’s ruling and held that she was the sole owner of the said suit properties having contributed the funds that were religiously sent to Mungania.

Justices Murgor, Laibuta and Macharia said they were not convinced that Mungania substantially contributed to the purchase and development of the suit properties with the total sum of sh4,757,000 earned from the sale of his seven-acre land in Meru and commission from tours.

“We also cannot ignore the fact that the sale agreements were in Kiswahili language which appears to have been well calculated to oust the appellant’s (Borrough) understanding of their contents. Furthermore, there was no counsel involved in the transaction, and who would give the appellant independent legal advice,” said Justice Murgor.

The judges said that all facts lead to the conclusion that Borrough expected that she would be the sole owner of the suit properties, but Mangania cunningly registered them in their joint names.

“Based on the record and the facts of the case, we have no difficulty in finding that a resulting trust arose since the appellant substantially funded the acquisition of the suit properties,” said Justice Murgor.

The judges ruled that equity follows the law and whether or not the properties were registered jointly in her name, by the mere fact that she proved her significant contribution to their acquisition and development, she was entitled to claim what rightfully belonged to her. 

“We then find and hold that the appellant is entitled to 90 per cent share of the suit properties while we apportion the respondent Mangania 10 percent share,” said Justice Murgor.

The appellate judges also ordered Mangania to refund Borrough Sh1,530,000, being 90 per cent of Sh1,700,000 from the sale of the Toyota Hilux.